EXHIBIT 99.4
___________, 1999
EXCHANGE AGENT AGREEMENT
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
Metris Companies Inc., a Delaware corporation (the "Company") proposes to
make an offer (the "Exchange Offer") to exchange all of its outstanding 10 1/8%
Senior Notes due 2006 (the "Old Notes") for its 10 1/8% Senior Notes due 2006
(the "New Notes"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated ___________ (the
"Prospectus"), proposed to be distributed to all record holders of the Old
Notes. The Old Notes and the New Notes are collectively referred to herein as
the "Notes".
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
_____________. The Letter of Transmittal accompanying the Prospectus (or in the
case of book-entry Notes, the Automated Tender Offer Program ("ATOP") of the
Book-Entry Transfer Facility (as defined below)) is to be used by the holders of
the Old Notes to accept the Exchange Offer and contains instructions with
respect to the delivery of certificates for Old Notes tendered in connection
therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
_________ or on such subsequent date or time to which the Company may extend the
Exchange Offer (the "Expiration Date"). Subject to the terms and conditions set
forth in the Prospectus, the Company expressly reserves the right to extend the
Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 a.m.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange
Offer, and not to accept for exchange any Old Notes not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the Exchange Offer
specified in the Prospectus under the caption "The Exchange Offer --
Conditions." The Company will give oral (promptly confirmed in writing) or
written notice of any amendment, termination or nonacceptance to you as promptly
as practicable.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically set
forth in the section of the Prospectus captioned "The Exchange Offer," the
Letter of Transmittal and herein; provided, however, that in no way will
your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the Old Notes at
The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the
Old Notes by causing the Book-Entry Transfer Facility to transfer such Old
Notes into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates for
Old Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed
to you by or for holders of the Old Notes to ascertain whether: (i) the
Letters of Transmittal and any such other documents are duly executed and
properly completed in accordance with instructions set forth therein; and
(ii) the Old Notes have otherwise been properly tendered. In each case
where the Letter of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old Notes are not in
proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any
other action as may be reasonably necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the President, Senior Vice President, Executive Vice
President, or any Vice President of the Company (such approval, if given
orally, to be promptly confirmed in writing) or any other party designated
in writing by such an officer, you are authorized to waive any
irregularities in connection with any tender of Old Notes pursuant to the
Exchange Offer.
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5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange
Offer", and Old Notes shall be considered properly tendered to you only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old Notes which the
President, Senior Vice President, Executive Vice President, or any Vice
President of the Company shall approve as having been properly tendered
shall be considered to be properly tendered (such approval, if given
orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Old Notes received as soon
as possible after the Expiration Date and accept its instructions with
respect to disposition of such Old Notes.
7. You shall accept tenders:
a. in cases where the Old Notes are registered in two or more names only
if signed by all named holders;
b. in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted; and
c. from persons other than the registered holder of Old Notes, provided
that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the registrar for split-up and return any untendered Old Notes to the holder (or
such other person as may be designated in the Letter of Transmittal) as promptly
as practicable after expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange Offer,
the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Old Notes properly tendered and you, on behalf of the Company,
will exchange such Old Notes for New Notes and cause such Old Notes to be
cancelled. Delivery of New Notes
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will be made on behalf of the Company by you at the rate of $1,000
principal amount of New Notes for each $1,000 principal amount of the
corresponding series of Old Notes tendered promptly after notice (such
notice if given orally, to be promptly confirmed in writing) of acceptance
of said Old Notes by the Company; provided, however, that in all cases, Old
Notes tendered pursuant to the Exchange Offer will be exchanged only after
timely receipt by you of certificates for such Old Notes (or confirmation
of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
manually signed facsimile thereof) with any required signature guarantees
and any other required documents. You shall issue New Notes only in
denominations of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Notes tendered if any
of the conditions set forth in the Exchange Offer are not met. Notice of
any decision by the Company not to exchange any Old Notes tendered shall be
given (if given orally, to be promptly confirmed in writing) by the Company
to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus
under the caption "The Exchange Offer -- Conditions" or otherwise, you
shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old Notes (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes or for New
Notes shall be forwarded by (a) first-class mail, postage prepaid under a
surety bond protecting you and the Company from loss or liability arising
out of the nonreceipt or nondelivery of such certificates or (b) by
registered mail insured separately for the replacement value of each of
such certificates.
13. You are not authorized to pay or offer to pay any concessions, commissions
or solicitation fees to any broker, dealer, bank or other persons or to
engage or utilize any person to solicit tenders.
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14. As Exchange Agent hereunder you:
a. shall not be liable to the Company for any action or omission to act
unless the same constitutes your own gross negligence, willful
misconduct or bad faith, and in no event shall you be liable to a
securityholder, the Company or any third party for special, indirect
or consequential damages, or lost profits, arising in connection with
this Agreement.
b. shall have no duties or obligations other than those specifically set
forth in the Prospectus, the Letter of Transmittal and herein or as
may be subsequently agreed to in writing between you and the Company;
c. will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates or the Old Notes represented thereby
deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value
or genuineness of the Exchange Offer;
d. shall not be obligated to take any legal action hereunder which might
in your judgment involve any expense or liability, unless you shall
have been furnished with reasonable indemnity satisfactory to you;
e. may rely on and shall be protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, telegram or other
document or security delivered to you and reasonably believed by you
to be genuine and to have been signed or presented by the proper
person or persons;
f. may act upon any tender, statement, request, document, agreement,
certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also
as to the truth and accuracy of any information contained therein,
which you shall in good faith reasonably believe to be genuine or to
have been signed or presented by the proper person or persons;
g. may rely on and shall be protected in acting upon written or oral
instructions from any authorized officer of the Company;
h. may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the written
advice or opinion
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of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by you hereunder in good faith and in accordance with the
written advice or opinion of such counsel; and
i. shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Old
Notes.
15. You shall take such action as may from time to time be requested by the
Company or its counsel (and such other action as you may deem appropriate)
to furnish copies of the Prospectus, Letter of Transmittal and the Notice
of Guaranteed Delivery (as defined in the Prospectus) or such other forms
as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests
for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with
copies of such documents on your request. All other requests for
information relating to the Exchange Offer shall be directed to the
Company, Attention: ____________________.
16. You shall advise by facsimile transmission, and promptly thereafter confirm
in writing, to ______ of the Company, Xxxxxxxx Xxxxxxxxx, Esq. of Xxxxxx &
Whitney, counsel for the Company, and such other person or persons as the
Company may request, daily (and more frequently during the week immediately
preceding the Expiration Date if requested) up to and including the
Expiration Date, as to the number of Old Notes which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to
this Agreement, separately reporting and giving cumulative totals as to
items properly received and items improperly received. In addition, you
will also inform, and cooperate in making available to, the Company or any
such other person or persons upon oral request made from time to time prior
to the Expiration Date of such other information as they may reasonably
request. Such cooperation shall include, without limitation, the granting
by you to the Company and such person as the Company may request of access
to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the
Company shall have received information in sufficient detail to enable it
to decide whether to extend the Exchange Offer. You shall prepare a final
list of all persons whose tenders were accepted, the aggregate principal
amount of Old Notes tendered, the aggregate principal amount of Old Notes
accepted and deliver said list to the Company.
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17. Letters of Transmittal and Notices of Guaranteed Delivery shall be stamped
by you as to the date and, after the expiration of the Exchange Offer, the
time, of receipt thereof and shall be preserved by you for a period of time
at least equal to the period of time you preserve other records pertaining
to the transfer of Notes. You shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for
the payment of transfer taxes by reason of amounts, if any, borrowed by the
Company or any of its subsidiaries or affiliates pursuant to any loan or
credit agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be entitled to
such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
20. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal. Any inconsistency between this Agreement, on the one hand, and
the Prospectus and the Letter of Transmittal (as they may be amended from
time to time), on the other hand, shall be resolved in favor of the latter
two documents, except with respect to your duties, liabilities and
indemnification as Exchange Agent which shall be controlled by this
Agreement.
21. The Company covenants and agrees to fully indemnify and hold you harmless
against any and all loss, liability, cost or expense, including reasonable
attorneys' fees and expenses, incurred without gross negligence, bad faith
or willful misconduct on your part, arising out of or in connection with
any act, omission, delay or refusal made by you in reliance upon any
signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document believed by you in good faith
to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Old Notes believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders
or effect any transfer of Old Notes. In no case shall the Company be liable
under this indemnity with respect to any claim against you unless the
Company shall be notified by you, by letter or facsimile transmission
confirmed by letter, of the written assertion of a claim against you or of
any other action commenced against you, promptly after you shall have
received any such written assertion or shall have been served with a
summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other
action and, if the Company so elects, the Company
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shall assume the defense of any suit brought to enforce any such claim. In
the event that the Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses of any additional
counsel thereafter retained by you, so long as the Company shall retain
counsel reasonably satisfactory to you to defend such suit, and so long as
you have not determined, in your reasonable judgment, that representation
of both you and the Company in such suit by the same legal counsel would
result in a conflict of interest between you and the Company. The
provisions of this section shall survive the termination of this Agreement.
22. You shall arrange to comply with all requirements under the tax laws of the
United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service.
23. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Notes, your check in the amount of all transfer
taxes so payable, and the Company shall reimburse you for the amount of all
transfer taxes payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent hereunder shall be
construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure
to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified, amended,
rescinded, cancelled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
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28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed
to it, at its address or telecopy number set forth below:
If to the Company:
Metris Companies Inc.
000 X. Xxxxxxx 000
Xxxxx 0000
Xx. Xxxxx Xxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: __________________
With a copy to:
Xxxxxx & Xxxxxxx LLP
Pillsbury Center South
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx Xxxxxxxxx
If to the Exchange Agent:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 18, 19 and 21 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property then
held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
METRIS COMPANIES INC.
By:
----------------------------------
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
----------------------------------
Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
[$5,000] PLUS $500 PER EXTENSION OF OFFER
PLUS REIMBURSEMENT OF REASONABLE OUT-OF POCKET EXPENSES,
INCLUDING WITHOUT LIMITATION,
LEGAL FEES AND EXPENSES.
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